The August 16 issue of the Tri-Valley Herald, daily newspaper of eastern Alameda County and nearby parts of Contra Costa County, has this op-ed, suggesting that California’s top-two system violates the U.S. Constitution. The op-ed is authored by Stephen D. Zendejas.
This is virtually the first time that any California newspaper has carried any content that suggests that the constitutionality of Proposition 14, passed by the voters in June 2010, is not assured. Even though the constitutionality of that type of system is pending in the 9th circuit, it appears that no California newspaper has told its readers that the lawsuit is still pending. Even this op-ed does not tell the readers about that specific case, which is called Washington State Republican Party v Washington State Grange.
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“it appears that no California newspaper has told its readers that the lawsuit is still pending.”
Indeed, I saw a couple articles recently on the top two push in Arizona which stated that the suit in Washington has already been settled.
For example, see: http://verdenews.com/main.asp?SectionID=1&SubSectionID=1&ArticleID=43229
That article states:
“The plan also is modeled after what voters approved in Washington and, more recently, in California. Attorney Karen Schroeder said the U.S. Supreme Court upheld the Washington law.”
#2, sadly, that is a typical example of how newspapers mislead their readers.
There are forces in Washington State that promote “Prefers Party” Top-Two as a way to stick it to the major parties. I do believe that the two major parties deserve the scorn but “prefers party” is a wrecking ball against political association in general. State law allowed me to prefer Grange Party on a public ballot. The Grange is a non-partisan group that doesn’t run or even endorse candidates. In fact promoting candidates is a big no-no in Grange. But I had people telling me how much they were excited about a Grange party. See? The state allowed me to change the message of the the group – and of all places the public ballot!
In addition, I had to explain to people, mostly one-on-one, what forced association is about and why the First Amendment is important. People would come around and agree with the notion that a group should be entitled to privacy in the USA.
I am devoted to the Grange and I’m happy they didn’t sue me. I would have pointed to the state anyway and said, “Sue them, it’s their law”. In Washington, a candidate can send a cue of 16 characters to voters on the ballot. I should have ran, Prefers American Legion Party, or even Prefers Walt Disney Party, but I made my point and withdrew.
And I didn’t want to muck up the good things about Washington’s Top-Two. I think it’s neat that a candidate can send a message on the ballot. We had a local candidate Prefer Lower Taxes Party and that was an honest statement about his ideals. I paid something like $450.00 and got on the ballot for county clerk, so there’s relatively easy ballot access. Finally, if Top-Two Prefers Party were held as facially unconstitutional in ’08, I firmly believe that we’d have non-partisan elections all down the line in Washington. I think that NP elections are a reform that have outlived their usefulness but that’s another story.
“Top Two” is unconstitutional.
Nominations for candidates for PUBLIC office is PUBLIC business by PUBLIC laws.
Nominations by ALL Electors or SOME Electors (in party hack gangs and/or independent groups) — according to such PUBLIC laws.
Way too difficult for the usual suspect constitutional law MORONS to understand ???
Nobody really knows what Scalia meant. In his dissent in Jones, Justice Stevens wrote that the court was referring to the system in use in Louisiana.
In the Washington case, Justice Thomas writing for the court said that they had not anticipated that information about a candidate’s political preferences would appear on the ballot.
Justice Scalia in his dissent in that decision neglected to clarify what he had meant.
Zendejas appears to be confused like the original district court judge in Washington, who basically ruled that the Grange was behind it and the Grange was behind the blanket primary, and therefore this is a blanket primary. It was only after the 9th Circuit clarified the core issues that the Supreme Court made its decision.
His idea of “de facto” nominees is nonsensical.
# 7 How many of the current 9 party hack robot SCOTUS folks are constitutional law M-O-R-O-N-S — aka loose cannons on the deck of the SCOTUS bench — putting their MORON ravings on paper in their JUNK opinions ???
— since many of them are CLUELESS about detecting proper classifications of the LAW.
I.E. the MORON CA Jones case must be OVER-RULED to end the chaos about PUBLIC nominations of PUBLIC candidates for PUBLIC offices.
— just like ALL of the 1968-2011 ballot access cases must be OVER-RULED to get EQUAL ballot access tests/laws.
Election law stuff is NOT atomic physics — regardless of the SCOTUS MORONS.
#7, we do know what Scalia meant by reading his dissent in the March 2008 decision from Washington state.
Justice Scalia’s “Oscar the Grouch” analogy is not only right on, its clarity is accessible to the layman – or at least should be. “And finally, while THE CHIEF JUSTICE earlier expresses his awareness that the special character of the ballot is what makes these cases different, his Campbell’s Soup example seems to forget that. If we must speak in terms of soup, Washington’s law is like a law that encourages Oscar the Grouch (Sesame Street’s famed bad- taste resident of a garbage can) to state a “preference” for Campbell’s at every point of sale, while barring the soup company from disavowing his endorsement, or indeed using its name at all, in those same crucial locations. Reserving the most critical communications forum for statements of “preference” by a potentially distasteful speaker alters public perceptions of the entity that is “preferred”; and when this privileged connection undermines not a company’s ability to identify and promote soup but an expressive association’s ability to identify and promote its message and its standard bearer, the State treads on the constitutionally protected freedom of association.”
I hope that someone doesn’t prefer “Americans Elect” on the ballot in state races. If AE catches on, an interloper like Oscar might jump out of his garbage can and use the name to get attention for his candidacy. This would likely aggravate AE and there could be legal action. Unlike the archaic experiment submitted by the Washington GOP as evidence of harm, this, like my Grange Party candidacy, is a clearer picture of the “prefers party” anti-association dynamic.
I grudgingly accept “Prefers Party” because it’s at least somewhat of a partisan ballot. From what I have observed in Washington State, if things come together for a candidate and the group they represent, I believe they could win election in our Top-Two system.
Like I said, if “Prefers Party” goes down as-applied, there will be a credible effort to make our state elections non-partisan all down the line. And they will win with anti-party sentiment filling their sails. Like Justice Scalia also made clear in the same dissent as above, “The State of Washington need not like, and need not favor, political parties. It is entirely free to decline running primaries for the selection of party nominees and to hold nonpartisan general elections in which party labels have no place on the ballot. See California Democratic Party v. Jones, 530 U. S. 567, 585–586 (2000).”
While Justice Scalia is clear — in the third paragraph of my last comment, I am referring to a new group / third party.
In 2008, former California State Senator Steve Peace commissioned a poll to ask California voters what they thought of removing party labels from the ballot for all office. The results were that voters didn’t like that idea at all.
I’m happy to hear that Richard.
King County WA went non-partisan a few years ago and it passed handily.
I also want to add that I’ve read many editorials here that slam the two political parties while promoting Washington Top-Two. Again, the parties deserve it, especially considering that they’re seeking a return to partisan primaries in their case against Top-Two. So I challenge folks to a little experiment myself — every time you read an opinion that slams “the parties”, substitute the term “political associations”. When I do this I find the sentiment troubling.
I firmly believe that if partisan primaries return, Washingtonians would overwhelmingly vote for non-partisan elections.
FREE advertising for the Prefers XYZ party stuff.
How many Hitler clones have a Prefers Communist Party label ???
How many Stalin clones have a Prefers Nazi Party label ???
What if the label was for soup by either a Hitler clone or a Stalin clone ???
Prefers Campbell’s soup ???
result — the label stuff means about ZERO.
Do ANY of the party hack candidates in CA respond to questions (oral or written) by the media and non-media groups ???
#9 In his Washington dissent Scalia refers to the system as a “nonpartisan general election”, and points to the California decision which he himself had authored, where he refers to it as a nonpartisan primary. You wonder why I don’t presume that the Supreme Court justices know what they are writing.
The Washington Open Primary system complies with his dicta.
(1) Washington determines what qualifications it requires for a candidate to have a place on the primary ballot;
(2) Each voter, regardless of party affiliation, may then vote for any candidate;
(3) The top two vote getters then move on to the general election;
“This system has all the characteristics of the partisan blanket primary, save the constitutionally crucial one: Primary voters are not choosing a party’s nominee.”
It was certainly a characteristic of the partisan blanket primary, that there might be more than one candidate from a party on the ballot. So Justice Scalia must have been presumed to understand that.
As a sometimes spokesperson for the Washington 3rd Party Coalition, I have seen the bills that have sneaked through, or various legislators or the Secretary of State have attempted to sneak through to make the Top 2, “Better”
It always comes down to: “Minor party” candidates have to gather signatures to get on the ballot, or to be a, “bona-fide party”. No party can add a line to the voters pamphlet to identify candidates they “Do Not Support”, leaving it to the voter to sort out the candidate who has been a loyal member of the XYZ party for 10 years, and held 9 offices in the same party from the man who has been kicked out of three political parties, and has a jail record a mile long. (a real person)
I don’t believe in VOTER BEWARE ballots.
PS, the nickname among the 3rd parties for the Top Two is,
The Primary to keep us off the General ballot”
The Top Two Primary and “prefers party XYZ” is not a good system in practice. It may seem well on paper but it blocks third parties for no practical reason that I can see. And that comes from experience running campaigns in the Top Two in 2008 and 2010. It makes it easy for the major parties to run candidates against third parties, which was admitted to us by certain Republican activists in the state of Washington. What we really need is to do away with the Primary system and allow open General Elections. Political parties in control of the American Republic is not constitutional. There is no provision made for a party system at all in the Constitution of the United States. Parties should exist to provide standards around which people of like minds can gather and run candidates, but once in office they take an oath to defend and support the Constitution, not a political party. Voters should not be forced to pay for the process of political parties selecting candidates, let alone have their choices arbitrarily limited by the two so-called major parties as if those were the only two voices to be heard. That was the purpose of the 1st Amendment Free Speech clause, to protect political speech not squelch it under the guise of “open elections”. If you want it really open, do away with the Primary and let everyone in to the general election on an equal footing.
It seems that the top two system is not a primary at all. It is a poor qualifying election.
If states allowed parties to choose candidates by their own internal process (e.g. convention or caucuses), then allowed other candidates to run as independents, and held a series of runoff elections, culminating with the final two candidates in november, they would have a system like louisiana and a few other states currently use.
If they then combined all of those runoff elections into a single irv election, they would save money, increase turnout, and free voters to fully express their preferences. And they would end state subsidizing and medaling with party selection processes.
But it’s WASHINGTON, and that’s not how we do things. If it is cheaper, more effective and more fair…we have to do something else.
Like all the times the people have voted either to do something (IRV in Pierce County), or not to do something,
(Like stadiums in Seattle)…the elected officials found a way to get around it.
Am I frustrated? Yup!
#19, Louisiana has its first round in congressional elections in November, and if no one gets 50%, there is a run-off in December. Louisiana’s method is far, far better than Washington and California, because in Louisiana, no congressional candidate is kept out of the general election campaign season.